The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 9, 2000, at the request of the employer. The Panel discussed this appeal on August 9, 2000.

Issue

Whether or not responsibility should be accepted for the claimant's secondary injury sustained on May 15, 1998 when she fell at home.

Decision

That responsibility should be accepted for the claimant's secondary injury sustained on May 15, 1998 when she fell at home.

Background

On May 1, 1998, the claimant was leaving work at the end of her shift when she lost her footing while descending a stairwell. At the time of the fall, the claimant stated that she grabbed the handrail and twisted her back and left hip. The diagnosis rendered by the attending physician was a muscular back strain. The claim was accepted as Workers Compensation Board (WCB) responsibility.

In a progress report dated May 11, 1998, the attending physician noted that the claimant's recovery was satisfactory with subjective complaints of pain with movement, hard to stand and bend. Objective findings were tenderness in the right buttock and paraspinal lumbar muscles. The treatment plan was to increase activity, perform back stretching exercises and medication was prescribed. The claimant was considered totally disabled for a further 8 days.

In a memorandum to file dated May 26, 1998, an adjudicator documented a telephone conversation that she had with the claimant. On May 15, 1998, the claimant indicated that while going down to the basement to get something out of the freezer she felt an immediate sharp pain in her left hip which caused her to fall down the stairs. When she attended a local hospital for treatment, the claimant was advised that she probably pulled the ligaments/tendons in her left shoulder. As well, she had a bruise the size of a basketball on her left hip. The claimant indicated that she would have been able to return to light duties on May 20, 1998, but after her fall she was unable to use her right arm and therefore could not do any keying. In subsequent file records, it was noted that the claimant considered her compensable injury had caused the fall at home.

Following receipt of additional medical information from the treating physician and the emergency facility where the claimant attended for treatment, the case was referred to a WCB medical advisor for comment.

On August 19, 1998, Claims Services denied responsibility for any time loss incurred by the claimant as a result of the May 15, 1998 incident. Based on the opinion expressed by the WCB medical advisor, Claims Services stated the following:

• on a balance of probabilities, the May 15, 1998, accident was not directly related to the workplace accident that occurred on May 1, 1998; and
• that if the claimant had not sustained a second injury at home on May 15, 1998, she would have been functionally capable of performing modified duties following the May 11, 1998, examination.

On June 25, 1999, the case was considered by Review Office at the request of a union representative acting on behalf of the claimant. Review Office overturned the decision of Claims Services indicating that responsibility should be accepted for the worker's secondary injuries sustained on May 15, 1998.

Review Office made reference to WCB policy 44.10.80.40 in its decision. Review Office stated it was apparent that the claimant had not recovered from the affects of the May 1, 1998 accident. It was also noted by Review Office that the reports received from the attending physician were consistent in indicating that the second accident was directly attributable to the initial compensable injury. In the absence of any substantive information to the contrary, Review Office believed, on a balance of probabilities, that the worker's shoulder and hip injuries caused by the fall down the stairs at home were predominantly attributable to the compensable injury and were therefore acceptable as part of the claim.

On May 19, 2000, the employer appealed Review Office's decision and an oral hearing was requested.

Reasons

As the background notes indicate, the claimant had not yet fully recovered from her compensable injury at the time that she sustained her secondary injury. According to the claimant's testimony, she was descending a flight of stairs in her home when she felt a sharp pain on the left lower back and hip area. "I had a very sharp pain. I was just going downstairs to get a pizza pop out of the freezer and I was on about the second, second stair and all of a sudden I got the sharp pain. And I guess I didn't handle it. I don't know. I went." This incident resulted in an injury to the claimant's left shoulder and rotator cuff.

The treating physician provided a report to the claimant's union representative dated November 30th, 1998 in which she summarized her appointments with the claimant during May 1998.

"Ms [the claimant] was initially seen May 2/98 by another physician and was diagnosed to have muscular back strain related to her fall on May 1/98. There is no mention of back pain in her chart prior to that date.

When I saw Ms [the claimant] May 11/98 I recorded that she reported having pain with movement. I do not recall whether she mentioned muscle spasms or not, but in my experience people with muscular back strain often do have muscle spasms.

At her May 19/98 visit my recollection is that Ms [the claimant] described having a sudden pain in her lower back and a sensation of the left hip giving out while she was going down stairs, resulting in her second fall. My recording this as having occurred on May 16, was an eror (sic) as records from Health Science Centre indicate it actually occurred on May 15/98. My May 19/98 chart notes read 'left hip gave out.' I interpret this to mean Ms [the claimant] experienced a muscle spasm resulting in her falling.

It is my opinion that Ms [the claimant's] fall on May 15/98 and the injuries she sustained in that fall are directly related to the back strain she sustained in the fall at work on May 1/98."

We note that the claimant was prescribed anti-inflammatory medication together with Tylenol #3's for her back strain and back difficulties. No final clearance had been given to the claimant allowing her to return to work at either light or modified duties when she suffered the second fall. We find after considering all of the evidence that the claimant's secondary injury on May 15th, 1998 was, on a balance probabilities, causally related to the compensable injury, which occurred approximately two weeks earlier.

WCB policy section 44.10.80.40 deals specifically with further injuries subsequent to a compensable injury. "This policy applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury." It provides in part that an injury occurring after a compensable injury will itself be considered compensable in those situations "where the cause of the further injury is predominantly attributable to the compensable injury."

We prefer to accept the treating physician's opinion with respect to the relationship between the two incidents. Therefore, in accordance with the evidence and WCB policy 44.10.80.40 the claimant's secondary injury of May 15th, 1998 is also compensable and responsibility for resulting consequences should be accepted.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of September, 2000